Sie sind auf Seite 1von 43

Republic of the Philippines



G.R. No. 183871 February 18, 2010


OMBUDSMAN, Respondents.



In this petition for review under Rule 45 of the Rules of Court in relation to
Section 191 of the Rule on the Writ of Amparo2 (Amparo Rule), Lourdes D.
Rubrico, Jean Rubrico Apruebo, and Mary Joy Rubrico Carbonel assail and
seek to set aside the Decision3 of the Court of Appeals (CA) dated July 31,
2008 in CA-G.R. SP No. 00003, a petition commenced under the Amparo

The petition for the writ of amparo dated October 25, 2007 was originally
filed before this Court. After issuing the desired writ and directing the
respondents to file a verified written return, the Court referred the petition to
the CA for summary hearing and appropriate action. The petition and its
attachments contained, in substance, the following allegations:

1. On April 3, 2007, armed men belonging to the 301st Air

Intelligence and Security Squadron (AISS, for short) based in
Fernando Air Base in Lipa City abducted Lourdes D. Rubrico
(Lourdes), then attending a Lenten pabasa in Bagong Bayan,
Dasmariñas, Cavite, and brought to, and detained at, the air base
without charges. Following a week of relentless interrogation -
conducted alternately by hooded individuals - and what amounts to
verbal abuse and mental harassment, Lourdes, chair of the Ugnayan
ng Maralita para sa Gawa Adhikan, was released at Dasmariñas,
Cavite, her hometown, but only after being made to sign a statement
that she would be a military asset.

After Lourdes’ release, the harassment, coming in the form of being

tailed on at least two occasions at different places, i.e., Dasmariñas,
Cavite and Baclaran in Pasay City, by motorcycle-riding men in
bonnets, continued;

2. During the time Lourdes was missing, P/Sr. Insp. Arsenio Gomez
(P/Insp. Gomez), then sub-station commander of Bagong Bayan,
Dasmariñas, Cavite, kept sending text messages to Lourdes’
daughter, Mary Joy R. Carbonel (Mary Joy), bringing her to beaches
and asking her questions about Karapatan, an alliance of human
rights organizations. He, however, failed to make an investigation
even after Lourdes’ disappearance had been made known to him;

3. A week after Lourdes’ release, another daughter, Jean R. Apruebo

(Jean), was constrained to leave their house because of the presence
of men watching them;

4. Lourdes has filed with the Office of the Ombudsman a criminal

complaint for kidnapping and arbitrary detention and administrative
complaint for gross abuse of authority and grave misconduct against
Capt. Angelo Cuaresma (Cuaresma), Ruben Alfaro (Alfaro), Jimmy
Santana (Santana) and a certain Jonathan, c/o Headquarters 301st
AISS, Fernando Air Base and Maj. Sy/Reyes with address at No. 09
Amsterdam Ext., Merville Subd., Parañaque City, but nothing has
happened; and the threats and harassment incidents have been
reported to the Dasmariñas municipal and Cavite provincial police
stations, but nothing eventful resulted from their respective

Two of the four witnesses to Lourdes’ abduction went into hiding after
being visited by government agents in civilian clothes; and

5. Karapatan conducted an investigation on the incidents. The

investigation would indicate that men belonging to the Armed Forces
of the Philippines (AFP), namely Capt. Cuaresma of the Philippine Air
Force (PAF), Alfaro, Santana, Jonathan and Maj. Darwin Sy/Reyes,
led the abduction of Lourdes; that unknown to the abductors, Lourdes
was able to pilfer a "mission order" which was addressed to CA
Ruben Alfaro and signed by Capt. Cuaresma of the PAF.

The petition prayed that a writ of amparo issue, ordering the individual
respondents to desist from performing any threatening act against the
security of the petitioners and for the Office of the Ombudsman (OMB) to
immediately file an information for kidnapping qualified with the aggravating
circumstance of gender of the offended party. It also prayed for damages
and for respondents to produce documents submitted to any of them on the
case of Lourdes.

Before the CA, respondents President Gloria Macapagal-Arroyo, Gen.

Hermogenes Esperon, then Armed Forces of the Philippines (AFP) Chief of
Staff, Police Director-General (P/Dir. Gen.) Avelino Razon, then Philippine
National Police (PNP) Chief, Police Superintendent (P/Supt.) Roquero of
the Cavite Police Provincial Office, Police Inspector (P/Insp.) Gomez, now
retired, and the OMB (answering respondents, collectively) filed, through
the Office of the Solicitor General (OSG), a joint return on the writ
specifically denying the material inculpatory averments against them. The
OSG also denied the allegations against the following impleaded persons,
namely: Cuaresma, Alfaro, Santana, Jonathan, and Sy/Reyes, for lack of
knowledge or information sufficient to form a belief as to the allegations’
truth. And by way of general affirmative defenses, answering respondents
interposed the following defenses: (1) the President may not be sued
during her incumbency; and (2) the petition is incomplete, as it fails to
indicate the matters required by Sec. 5(d) and (e) of the Amparo Rule.4

Attached to the return were the affidavits of the following, among other
public officials, containing their respective affirmative defenses and/or
statements of what they had undertaken or committed to undertake
regarding the claimed disappearance of Lourdes and the harassments
made to bear on her and her daughters:

1. Gen. Esperon – attested that, pursuant to a directive of then

Secretary of National Defense (SND) Gilberto C. Teodoro, Jr., he
ordered the Commanding General of the PAF, with information to all
concerned units, to conduct an investigation to establish the
circumstances behind the disappearance and the reappearance of
Lourdes insofar as the involvement of alleged personnel/unit is
concerned. The Provost Marshall General and the Office of the Judge
Advocate General (JAGO), AFP, also undertook a parallel action.

Gen. Esperon manifested his resolve to provide the CA with material

results of the investigation; to continue with the probe on the alleged
abduction of Lourdes and to bring those responsible, including
military personnel, to the bar of justice when warranted by the
findings and the competent evidence that may be gathered in the
investigation process by those mandated to look into the matter;5

2. P/Dir. Gen. Razon - stated that an investigation he immediately

ordered upon receiving a copy of the petition is on-going vis-à-vis
Lourdes’ abduction, and that a background verification with the PNP
Personnel Accounting and Information System disclosed that the
names Santana, Alfaro, Cuaresma and one Jonathan do not appear
in the police personnel records, although the PNP files carry the
name of Darwin Reyes Y. Muga.

Per the initial investigation report of the Dasmariñas municipal police

station, P/Dir. Gen. Razon disclosed, Lourdes was abducted by six
armed men in the afternoon of April 3, 2007 and dragged aboard a
Toyota Revo with plate number XRR 428, which plate was issued for
a Mitsubishi van to AK Cottage Industry with address at 9 Amsterdam
St., Merville Subd., Parañaque City. The person residing in the
apartment on that given address is one Darius/Erwin See @ Darius
Reyes allegedly working, per the latter’s house helper, in Camp

P/Dir. Gen. Razon, however, bemoaned the fact that Mrs. Rubrico
never contacted nor coordinated with the local police or other
investigating units of the PNP after her release, although she is in the
best position to establish the identity of her abductors and/or provide
positive description through composite sketching. Nonetheless, he
manifested that the PNP is ready to assist and protect the petitioners
and the key witnesses from threats, harassments and intimidation
from whatever source and, at the same time, to assist the Court in the
implementation of its orders.61avvphi1
3. P/Supt. Roquero – stated conducting, upon receipt of Lourdes’
complaint, an investigation and submitting the corresponding report to
the PNP Calabarzon, observing that neither Lourdes nor her relatives
provided the police with relevant information;

4. P/Insp. Gomez – alleged that Lourdes, her kin and witnesses

refused to cooperate with the investigating Cavite PNP; and

5. Overall Deputy Ombudsman Orlando Casimiro - alleged that cases

for violation of Articles 267 and 124, or kidnapping and arbitrary
detention, respectively, have been filed with, and are under
preliminary investigation by the OMB against those believed to be
involved in Lourdes’ kidnapping; that upon receipt of the petition for a
writ of amparo, proper coordination was made with the Office of the
Deputy Ombudsman for the Military and other Law Enforcement
Offices (MOLEO) where the subject criminal and administrative
complaints were filed.

Commenting on the return, petitioners pointed out that the return was no
more than a general denial of averments in the petition. They, thus,
pleaded to be allowed to present evidence ex parte against the President,
Santana, Alfaro, Capt. Cuaresma, Darwin Sy, and Jonathan. And with
leave of court, they also asked to serve notice of the petition through
publication, owing to their failure to secure the current address of the latter
five and thus submit, as the CA required, proof of service of the petition on

The hearing started on November 13, 2007.7 In that setting, petitioners’

counsel prayed for the issuance of a temporary protection order (TPO)
against the answering respondents on the basis of the allegations in the
petition. At the hearing of November 20, 2007, the CA granted petitioners’
motion that the petition and writ be served by the court’s process server on
Darwin Sy/Reyes, Santana, Alfaro, Capt. Cuaresma, and Jonathan.

The legal skirmishes that followed over the propriety of excluding President
Arroyo from the petition, petitioners’ motions for service by publication, and
the issuance of a TPO are not of decisive pertinence in this recital. The
bottom line is that, by separate resolutions, the CA dropped the President
as respondent in the case; denied the motion for a TPO for the court’s want
of authority to issue it in the tenor sought by petitioners; and effectively
denied the motion for notice by publication owing to petitioners’ failure to
submit the affidavit required under Sec. 17, Rule 14 of the Rules of Court.8

After due proceedings, the CA rendered, on July 31, 2008, its partial
judgment, subject of this review, disposing of the petition but only insofar as
the answering respondents were concerned. The fallo of the CA decision
reads as follows:

WHEREFORE, premises considered, partial judgment is hereby

rendered DISMISSING the instant petition with respect to respondent Gen.
Hermogenes Esperon, P/Dir. Gen. Avelino Razon, Supt. Edgar B. Roquero,
P/Sr. Insp. Arsenio C. Gomez (ret.) and the Office of the Ombudsman.

Nevertheless, in order that petitioners’ complaint will not end up as another

unsolved case, the heads of the Armed Forces of the Philippines and the
Philippine National Police are directed to ensure that the investigations
already commenced are diligently pursued to bring the perpetrators to
justice. The Chief of Staff of the Armed Forces of the Philippines and P/Dir.
Gen. Avelino Razon are directed to regularly update petitioners and this
Court on the status of their investigation.


In this recourse, petitioners formulate the issue for resolution in the

following wise:

WHETHER OR NOT the [CA] committed reversible error in dismissing

[their] Petition and dropping President Gloria Macapagal Arroyo as party

Petitioners first take issue on the President’s purported lack of immunity

from suit during her term of office. The 1987 Constitution, so they claim,
has removed such immunity heretofore enjoyed by the chief executive
under the 1935 and 1973 Constitutions.

Petitioners are mistaken. The presidential immunity from suit remains

preserved under our system of government, albeit not expressly reserved
in the present constitution. Addressing a concern of his co-members in the
1986 Constitutional Commission on the absence of an express provision on
the matter, Fr. Joaquin Bernas, S.J. observed that it was already
understood in jurisprudence that the President may not be sued during his
or her tenure.9 The Court subsequently made it abundantly clear in David v.
Macapagal-Arroyo, a case likewise resolved under the umbrella of the 1987
Constitution, that indeed the President enjoys immunity during her
incumbency, and why this must be so:

Settled is the doctrine that the President, during his tenure of office or
actual incumbency, may not be sued in any civil or criminal case, and there
is no need to provide for it in the Constitution or law. It will degrade the
dignity of the high office of the President, the Head of State, if he can be
dragged into court litigations while serving as such. Furthermore, it is
important that he be freed from any form of harassment, hindrance or
distraction to enable him to fully attend to the performance of his official
duties and functions. Unlike the legislative and judicial branch, only one
constitutes the executive branch and anything which impairs his usefulness
in the discharge of the many great and important duties imposed upon him
by the Constitution necessarily impairs the operation of the
Government.10 x x x

And lest it be overlooked, the petition is simply bereft of any allegation as to

what specific presidential act or omission violated or threatened to violate
petitioners’ protected rights.

This brings us to the correctness of the assailed dismissal of the petition

with respect to Gen. Esperon, P/Dir. Gen. Razon, P/Supt. Roquero, P/Insp.
Gomez, and the OMB.

None of the four individual respondents immediately referred to above has

been implicated as being connected to, let alone as being behind, the
alleged abduction and harassment of petitioner Lourdes. Their names were
not even mentioned in Lourdes’ Sinumpaang Salaysay11 of April 2007. The
same goes for the respective Sinumpaang Salaysay and/or Karagdagang
Sinumpaang Salaysay of Jean12 and Mary Joy.13

As explained by the CA, Gen. Esperon and P/Dir. Gen. Razon were
included in the case on the theory that they, as commanders, were
responsible for the unlawful acts allegedly committed by their subordinates
against petitioners. To the appellate court, "the privilege of the writ of
amparo must be denied as against Gen. Esperon and P/Dir. Gen. Razon
for the simple reason that petitioners have not presented evidence showing
that those who allegedly abducted and illegally detained Lourdes and later
threatened her and her family were, in fact, members of the military or the
police force." The two generals, the CA’s holding broadly hinted, would
have been accountable for the abduction and threats if the actual
malefactors were members of the AFP or PNP.

As regards the three other answering respondents, they were impleaded

because they allegedly had not exerted the required extraordinary diligence
in investigating and satisfactorily resolving Lourdes’ disappearance or
bringing to justice the actual perpetrators of what amounted to a criminal
act, albeit there were allegations against P/Insp. Gomez of acts constituting
threats against Mary Joy.

While in a qualified sense tenable, the dismissal by the CA of the case as

against Gen. Esperon and P/Dir. Gen. Razon is incorrect if viewed against
the backdrop of the stated rationale underpinning the assailed decision vis-
à-vis the two generals, i.e., command responsibility. The Court assumes
the latter stance owing to the fact that command responsibility, as a
concept defined, developed, and applied under international law, has little,
if at all, bearing in amparo proceedings.

The evolution of the command responsibility doctrine finds its context in the
development of laws of war and armed combats. According to Fr. Bernas,
"command responsibility," in its simplest terms, means the "responsibility of
commanders for crimes committed by subordinate members of the armed
forces or other persons subject to their control in international wars or
domestic conflict."14 In this sense, command responsibility is properly a
form of criminal complicity. The Hague Conventions of 1907 adopted the
doctrine of command responsibility,15foreshadowing the present-day
precept of holding a superior accountable for the atrocities committed by
his subordinates should he be remiss in his duty of control over them. As
then formulated, command responsibility is "an omission mode of
individual criminal liability," whereby the superior is made responsible
for crimes committed by his subordinates for failing to prevent or punish
the perpetrators16 (as opposed to crimes he ordered).

The doctrine has recently been codified in the Rome Statute17 of the
International Criminal Court (ICC) to which the Philippines is signatory.
Sec. 28 of the Statute imposes individual responsibility on military
commanders for crimes committed by forces under their control. The
country is, however, not yet formally bound by the terms and provisions
embodied in this treaty-statute, since the Senate has yet to extend
concurrence in its ratification.18

While there are several pending bills on command responsibility,19 there is

still no Philippine law that provides for criminal liability under that doctrine.20

It may plausibly be contended that command responsibility, as legal basis

to hold military/police commanders liable for extra-legal killings, enforced
disappearances, or threats, may be made applicable to this jurisdiction on
the theory that the command responsibility doctrine now constitutes a
principle of international law or customary international law in accordance
with the incorporation clause of the Constitution.21 Still, it would be
inappropriate to apply to these proceedings the doctrine of command
responsibility, as the CA seemed to have done, as a form of criminal
complicity through omission, for individual respondents’ criminal liability, if
there be any, is beyond the reach of amparo. In other words, the Court
does not rule in such proceedings on any issue of criminal culpability, even
if incidentally a crime or an infraction of an administrative rule may have
been committed. As the Court stressed in Secretary of National Defense v.
Manalo (Manalo),22 the writ of amparo was conceived to provide
expeditious and effective procedural relief against violations or threats of
violation of the basic rights to life, liberty, and security of persons; the
corresponding amparo suit, however, "is not an action to determine criminal
guilt requiring proof beyond reasonable doubt x x x or administrative liability
requiring substantial evidence that will require full and exhaustive
proceedings."23 Of the same tenor, and by way of expounding on the nature
and role of amparo, is what the Court said in Razon v. Tagitis:

It does not determine guilt nor pinpoint criminal culpability for the
disappearance [threats thereof or extra-judicial killings]; it determines
responsibility, or at least accountability, for the enforced disappearance
[threats thereof or extra-judicial killings] for purposes of imposing the
appropriate remedies to address the disappearance [or extra-judicial


As the law now stands, extra-judicial killings and enforced disappearances

in this jurisdiction are not crimes penalized separately from the component
criminal acts undertaken to carry out these killings and enforced
disappearances and are now penalized under the Revised Penal Code and
special laws. The simple reason is that the Legislature has not spoken on
the matter; the determination of what acts are criminal x x x are matters of
substantive law that only the Legislature has the power to enact.24 x x x

If command responsibility were to be invoked and applied to these

proceedings, it should, at most, be only to determine the author who, at the
first instance, is accountable for, and has the duty to address, the
disappearance and harassments complained of, so as to enable the Court
to devise remedial measures that may be appropriate under the premises
to protect rights covered by the writ of amparo. As intimated earlier,
however, the determination should not be pursued to fix criminal liability on
respondents preparatory to criminal prosecution, or as a prelude to
administrative disciplinary proceedings under existing administrative
issuances, if there be any.

Petitioners, as the CA has declared, have not adduced substantial

evidence pointing to government involvement in the disappearance of
Lourdes. To a concrete point, petitioners have not shown that the actual
perpetrators of the abduction and the harassments that followed formally or
informally formed part of either the military or the police chain of command.
A preliminary police investigation report, however, would tend to show a
link, however hazy, between the license plate (XRR 428) of the vehicle
allegedly used in the abduction of Lourdes and the address of Darwin
Reyes/Sy, who was alleged to be working in Camp Aguinaldo.25 Then, too,
there were affidavits and testimonies on events that transpired which, if
taken together, logically point to military involvement in the alleged
disappearance of Lourdes, such as, but not limited to, her abduction in
broad daylight, her being forcibly dragged to a vehicle blindfolded and then
being brought to a place where the sounds of planes taking off and landing
could be heard. Mention may also be made of the fact that Lourdes was
asked about her membership in the Communist Party and of being
released when she agreed to become an "asset."

Still and all, the identities and links to the AFP or the PNP of the alleged
abductors, namely Cuaresma, Alfaro, Santana, Jonathan, and Sy/Reyes,
have yet to be established.

Based on the separate sworn statements of Maj. Paul Ciano26 and

Technical Sergeant John N. Romano,27 officer-in-charge and a staff of the
301st AISS, respectively, none of the alleged abductors of Lourdes
belonged to the 301st AISS based in San Fernando Air Base. Neither were
they members of any unit of the Philippine Air Force, per the
certification28 of Col. Raul Dimatactac, Air Force Adjutant. And as stated in
the challenged CA decision, a verification with the Personnel Accounting
and Information System of the PNP yielded the information that, except for
a certain Darwin Reyes y Muga, the other alleged abductors, i.e.,
Cuaresma, Alfaro, Santana and Jonathan, were not members of the PNP.
Petitioners, when given the opportunity to identify Police Officer 1 Darwin
Reyes y Muga, made no effort to confirm if he was the same Maj. Darwin
Reyes a.k.a. Darwin Sy they were implicating in Lourdes’ abduction.

Petitioners, to be sure, have not successfully controverted answering

respondents’ documentary evidence, adduced to debunk the former’s
allegations directly linking Lourdes’ abductors and tormentors to the military
or the police establishment. We note, in fact, that Lourdes, when queried
on cross-examination, expressed the belief that Sy/Reyes was an NBI
agent.29 The Court is, of course, aware of what was referred to in
Razon30 as the "evidentiary difficulties" presented by the nature of, and
encountered by petitioners in, enforced disappearance cases. But it is
precisely for this reason that the Court should take care too that no wrong
message is sent, lest one conclude that any kind or degree of evidence,
even the outlandish, would suffice to secure amparo remedies and

Sec. 17, as complemented by Sec. 18 of the Amparo Rule, expressly

prescribes the minimum evidentiary substantiation requirement and norm to
support a cause of action under the Rule, thus:

Sec. 17. Burden of Proof and Standard of Diligence Required.—The parties

shall establish their claims by substantial evidence.


Sec. 18. Judgment.—x x x If the allegations in the petition are proven by

substantial evidence, the court shall grant the privilege of the writ and such
reliefs as may be proper and appropriate; otherwise, the privilege shall be
denied. (Emphasis added.)

Substantial evidence is more than a mere imputation of wrongdoing or

violation that would warrant a finding of liability against the person
charged;31 it is more than a scintilla of evidence. It means such amount of
relevant evidence which a reasonable mind might accept as adequate to
support a conclusion, even if other equally reasonable minds might opine
otherwise.32 Per the CA’s evaluation of their evidence, consisting of the
testimonies and affidavits of the three Rubrico women and five other
individuals, petitioners have not satisfactorily hurdled the evidentiary bar
required of and assigned to them under the Amparo Rule. In a very real
sense, the burden of evidence never even shifted to answering
respondents. The Court finds no compelling reason to disturb the appellate
court’s determination of the answering respondents’ role in the alleged
enforced disappearance of petitioner Lourdes and the threats to her
family’s security.

Notwithstanding the foregoing findings, the Court notes that both Gen.
Esperon and P/Dir. Gen. Razon, per their separate affidavits, lost no time,
upon their receipt of the order to make a return on the writ, in issuing
directives to the concerned units in their respective commands for a
thorough probe of the case and in providing the investigators the necessary
support. As of this date, however, the investigations have yet to be
concluded with some definite findings and recommendation.

As regards P/Supt. Romero and P/Insp. Gomez, the Court is more than
satisfied that they have no direct or indirect hand in the alleged enforced
disappearance of Lourdes and the threats against her daughters. As police
officers, though, theirs was the duty to thoroughly investigate the abduction
of Lourdes, a duty that would include looking into the cause, manner, and
like details of the disappearance; identifying witnesses and obtaining
statements from them; and following evidentiary leads, such as the Toyota
Revo vehicle with plate number XRR 428, and securing and preserving
evidence related to the abduction and the threats that may aid in the
prosecution of the person/s responsible. As we said in Manalo,33 the right
to security, as a guarantee of protection by the government, is breached by
the superficial and one-sided––hence, ineffective––investigation by the
military or the police of reported cases under their jurisdiction. As found by
the CA, the local police stations concerned, including P/Supt. Roquero and
P/Insp. Gomez, did conduct a preliminary fact-finding on petitioners’
complaint. They could not, however, make any headway, owing to what
was perceived to be the refusal of Lourdes, her family, and her witnesses
to cooperate. Petitioners’ counsel, Atty. Rex J.M.A. Fernandez, provided a
plausible explanation for his clients and their witnesses’ attitude, "[They] do
not trust the government agencies to protect them."34 The difficulty arising
from a situation where the party whose complicity in extra-judicial killing or
enforced disappearance, as the case may be, is alleged to be the same
party who investigates it is understandable, though.

The seeming reluctance on the part of the Rubricos or their witnesses to

cooperate ought not to pose a hindrance to the police in pursuing, on its
own initiative, the investigation in question to its natural end. To repeat
what the Court said in Manalo, the right to security of persons is a
guarantee of the protection of one’s right by the government. And this
protection includes conducting effective investigations of extra-legal killings,
enforced disappearances, or threats of the same kind. The nature and
importance of an investigation are captured in the Velasquez
Rodriguez case,35 in which the Inter-American Court of Human Rights

[The duty to investigate] must be undertaken in a serious manner and not

as a mere formality preordained to be ineffective. An investigation must
have an objective and be assumed by the State as its own legal duty, not a
step taken by private interests that depends upon the initiative of the
victim or his family or upon offer of proof, without an effective search for
the truth by the government. (Emphasis added.)

This brings us to Mary Joy’s charge of having been harassed by

respondent P/Insp. Gomez. With the view we take of this incident, there is
nothing concrete to support the charge, save for Mary Joy’s bare
allegations of harassment. We cite with approval the following self-
explanatory excerpt from the appealed CA decision:

In fact, during her cross-examination, when asked what specific act or

threat P/Sr. Gomez (ret) committed against her or her mother and sister,
Mary Joy replied "None …"36

Similarly, there appears to be no basis for petitioners’ allegations about the

OMB failing to act on their complaint against those who allegedly abducted
and illegally detained Lourdes. Contrary to petitioners’ contention, the OMB
has taken the necessary appropriate action on said complaint. As culled
from the affidavit37 of the Deputy Overall Ombudsman and the joint
affidavits38 of the designated investigators, all dated November 7, 2007, the
OMB had, on the basis of said complaint, commenced criminal39 and
administrative40 proceedings, docketed as OMB-P-C-07-0602-E and OMB-
P-A 07-567-E, respectively, against Cuaresma, Alfaro, Santana, Jonathan,
and Sy/Reyes. The requisite orders for the submission of counter-affidavits
and verified position papers had been sent out.

The privilege of the writ of amparo, to reiterate, is a remedy available to

victims of extra-judicial killings and enforced disappearances or threats of
similar nature, regardless of whether the perpetrator of the unlawful act or
omission is a public official or employee or a private individual.

At this juncture, it bears to state that petitioners have not provided the CA
with the correct addresses of respondents Cuaresma, Alfaro, Santana,
Jonathan, and Sy/Reyes. The mailed envelopes containing the petition for
a writ of amparo individually addressed to each of them have all been
returned unopened. And petitioners’ motion interposed before the appellate
court for notice or service via publication has not been accompanied by
supporting affidavits as required by the Rules of Court. Accordingly, the
appealed CA partial judgment––disposing of the underlying petition for a
writ of amparo without (1) pronouncement as to the accountability, or lack
of it, of the four non-answering respondents or (2) outright dismissal of the
same petition as to them––hews to the prescription of Sec. 20 of the
Amparo Rule on archiving and reviving cases.41 Parenthetically, petitioners
have also not furnished this Court with sufficient data as to where the afore-
named respondents may be served a copy of their petition for review.

Apart from the foregoing considerations, the petition did not allege ultimate
facts as would link the OMB in any manner to the violation or threat of
violation of the petitioners’ rights to life, liberty, or personal security.

The privilege of the writ of amparo is envisioned basically to protect and

guarantee the rights to life, liberty, and security of persons, free from fears
and threats that vitiate the quality of this life.42 It is an extraordinary writ
conceptualized and adopted in light of and in response to the prevalence of
extra-legal killings and enforced disappearances.43 Accordingly, the remedy
ought to be resorted to and granted judiciously, lest the ideal sought by the
Amparo Rule be diluted and undermined by the indiscriminate filing of
amparo petitions for purposes less than the desire to secure amparo reliefs
and protection and/or on the basis of unsubstantiated allegations.
In their petition for a writ of amparo, petitioners asked, as their main prayer,
that the Court order the impleaded respondents "to immediately desist from
doing any acts that would threaten or seem to threaten the security of the
Petitioners and to desist from approaching Petitioners, x x x their
residences and offices where they are working under pain of contempt of
[this] Court." Petitioners, however, failed to adduce the threshold
substantive evidence to establish the predicate facts to support their cause
of action, i.e., the adverted harassments and threats to their life, liberty, or
security, against responding respondents, as responsible for the
disappearance and harassments complained of. This is not to say,
however, that petitioners’ allegation on the fact of the abduction incident or
harassment is necessarily contrived. The reality on the ground, however, is
that the military or police connection has not been adequately proved either
by identifying the malefactors as components of the AFP or PNP; or in case
identification is not possible, by showing that they acted with the direct or
indirect acquiescence of the government. For this reason, the Court is
unable to ascribe the authorship of and responsibility for the alleged
enforced disappearance of Lourdes and the harassment and threats on her
daughters to individual respondents. To this extent, the dismissal of the
case against them is correct and must, accordingly, be sustained.

Prescinding from the above considerations, the Court distinctly notes that
the appealed decision veritably extended the privilege of the writ of amparo
to petitioners when it granted what to us are amparo reliefs. Consider: the
appellate court decreed, and rightly so, that the police and the military take
specific measures for the protection of petitioners’ right or threatened right
to liberty or security. The protection came in the form of directives
specifically to Gen. Esperon and P/Dir. Gen. Razon, requiring each of them
(1) to ensure that the investigations already commenced by the AFP and
PNP units, respectively, under them on the complaints of Lourdes and her
daughters are being pursued with urgency to bring to justice the
perpetrators of the acts complained of; and (2) to submit to the CA, copy
furnished the petitioners, a regular report on the progress and status of the
investigations. The directives obviously go to Gen. Esperon in his capacity
as head of the AFP and, in a sense, chief guarantor of order and security in
the country. On the other hand, P/Dir. Gen. Razon is called upon to
perform a duty pertaining to the PNP, a crime-preventing, investigatory,
and arresting institution.
As the CA, however, formulated its directives, no definitive time frame was
set in its decision for the completion of the investigation and the reportorial
requirements. It also failed to consider Gen. Esperon and P/Dir. Gen.
Razon’s imminent compulsory retirement from the military and police
services, respectively. Accordingly, the CA directives, as hereinafter
redefined and amplified to fully enforce the amparo remedies, are hereby
given to, and shall be directly enforceable against, whoever sits as the
commanding general of the AFP and the PNP.

At this stage, two postulates and their implications need highlighting for a
proper disposition of this case.

First, a criminal complaint for kidnapping and, alternatively, for arbitrary

detention rooted in the same acts and incidents leading to the filing of the
subject amparo petition has been instituted with the OMB, docketed as
OMB-P-C-O7-0602-E. The usual initial steps to determine the existence of
a prima facie case against the five (5) impleaded individuals suspected to
be actually involved in the detention of Lourdes have been set in motion. It
must be pointed out, though, that the filing44 of the OMB complaint came
before the effectivity of the Amparo Rule on October 24, 2007.

Second, Sec. 2245 of the Amparo Rule proscribes the filing of an amparo
petition should a criminal action have, in the meanwhile, been commenced.
The succeeding Sec. 23,46 on the other hand, provides that when the
criminal suit is filed subsequent to a petition for amparo, the petition shall
be consolidated with the criminal action where the Amparo Rule shall
nonetheless govern the disposition of the relief under the Rule. Under the
terms of said Sec. 22, the present petition ought to have been dismissed at
the outset. But as things stand, the outright dismissal of the petition by
force of that section is no longer technically feasible in light of the interplay
of the following factual mix: (1) the Court has, pursuant to Sec. 647 of the
Rule, already issued ex parte the writ of amparo; (2) the CA, after a
summary hearing, has dismissed the petition, but not on the basis of Sec.
22; and (3) the complaint in OMB-P-C-O7-0602-E named as respondents
only those believed to be the actual abductors of Lourdes, while the instant
petition impleaded, in addition, those tasked to investigate the kidnapping
and detention incidents and their superiors at the top. Yet, the acts and/or
omissions subject of the criminal complaint and the amparo petition are so
linked as to call for the consolidation of both proceedings to obviate the
mischief inherent in a multiplicity-of-suits situation.
Given the above perspective and to fully apply the beneficial nature of the
writ of amparo as an inexpensive and effective tool to protect certain rights
violated or threatened to be violated, the Court hereby adjusts to a degree
the literal application of Secs. 22 and 23 of the Amparo Rule to fittingly
address the situation obtaining under the premises. 48 Towards this end,
two things are at once indicated: (1) the consolidation of the probe and fact-
finding aspects of the instant petition with the investigation of the criminal
complaint before the OMB; and (2) the incorporation in the same criminal
complaint of the allegations in this petition bearing on the threats to the
right to security. Withal, the OMB should be furnished copies of the
investigation reports to aid that body in its own investigation and eventual
resolution of OMB-P-C-O7-0602-E. Then, too, the OMB shall be given easy
access to all pertinent documents and evidence, if any, adduced before the
CA. Necessarily, Lourdes, as complainant in OMB-P-C-O7-0602-E, should
be allowed, if so minded, to amend her basic criminal complaint if the
consolidation of cases is to be fully effective.

WHEREFORE, the Court PARTIALLY GRANTS this petition for review and
makes a decision:

(1) Affirming the dropping of President Gloria Macapagal-Arroyo from

the petition for a writ of amparo;

(2) Affirming the dismissal of the amparo case as against Gen.

Hermogenes Esperon, and P/Dir. Gen. Avelino Razon, insofar as it
tended, under the command responsibility principle, to attach
accountability and responsibility to them, as then AFP Chief of Staff
and then PNP Chief, for the alleged enforced disappearance of
Lourdes and the ensuing harassments allegedly committed against
petitioners. The dismissal of the petition with respect to the OMB is
also affirmed for failure of the petition to allege ultimate facts as to
make out a case against that body for the enforced disappearance of
Lourdes and the threats and harassment that followed; and

(3) Directing the incumbent Chief of Staff, AFP, or his successor, and
the incumbent Director-General of the PNP, or his successor, to
ensure that the investigations already commenced by their respective
units on the alleged abduction of Lourdes Rubrico and the alleged
harassments and threats she and her daughters were made to
endure are pursued with extraordinary diligence as required by Sec.
1749 of the Amparo Rule. They shall order their subordinate officials,
in particular, to do the following:

(a) Determine based on records, past and present, the

identities and locations of respondents Maj. Darwin Sy, a.k.a.
Darwin Reyes, Jimmy Santana, Ruben Alfaro, Capt. Angelo
Cuaresma, and one Jonathan; and submit certifications of this
determination to the OMB with copy furnished to petitioners, the
CA, and this Court;

(b) Pursue with extraordinary diligence the evidentiary leads

relating to Maj. Darwin Sy and the Toyota Revo vehicle with
Plate No. XRR 428; and

(c) Prepare, with the assistance of petitioners and/or witnesses,

cartographic sketches of respondents Maj. Sy/Reyes, Jimmy
Santana, Ruben Alfaro, Capt. Angelo Cuaresma, and a certain
Jonathan to aid in positively identifying and locating them.

The investigations shall be completed not later than six (6) months from
receipt of this Decision; and within thirty (30) days after completion of the
investigations, the Chief of Staff of the AFP and the Director-General of the
PNP shall submit a full report of the results of the investigations to the
Court, the CA, the OMB, and petitioners.

This case is accordingly referred back to the CA for the purpose of

monitoring the investigations and the actions of the AFP and the PNP.

Subject to the foregoing modifications, the Court AFFIRMS the partial

judgment dated July 31, 2008 of the CA.



Associate Justice


Chief Justice
Associate Justice Associate Justice


Associate Justice Associate Justice

Associate Justice
Associate Justice

(No part)
Associate Justice
Associate Justice


Associate Justice Associate Justice


Associate Justice Associate Justice


Associate Justice


Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified

that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the

Chief Justice

* No part.
SEC. 19. Appeal. – Any party may appeal from the final judgment or
order to the Supreme Court under Rule 45. The appeal may raise
questions of fact or law or both. x x x
A.M. No. 07-9-12-SC.
Penned by Associate Justice Edgardo P. Cruz (now retired) and
concurred in by Associate Justices Fernanda Lampas-Peralta and
Normandie Pizarro.
Sec. 5. Contents of the Petition.––The petition x x x shall allege the
following: x x x d) The investigation conducted, if any, specifying the
names and personal circumstances and addresses of the
investigating authority or individuals, as well as the manner and
conduct of the investigation, together with any report; e) The actions
and recourses taken by the petitioner to determine the fate or
whereabouts of the aggrieved party and the identity of the person
responsible for the threat, act or omission.
Rollo, pp. 196-198.
Id. at 228-233.
Id. at 48.
Sec. 17. Leave of Court. – Any application to the court under this
Rule for leave to effect service in any manner which leave of court is
necessary shall be made by motion in writing, supported by an
affidavit of the plaintiff or some person on his behalf, setting forth the
grounds for the application.
Bernas, The Constitution of the Republic of the Philippines 738
(1996); citing Soliven v. Makasiar, Nos. L-82585, L-82827 & L-83979,
November 14, 1988, 167 SCRA 393.
G.R. No. 171396, May 3, 2006, 489 SCRA 160, 224-225.
Rollo, pp. 524-527.
Id. at 528-530, 531-532.
Id. at 311-313.
J.G. Bernas, S.J., Command Responsibility, February 5, 2007
Eugenia Levine, Command Responsibility, The Mens Rea
Requirement, Global Policy Forum, February 2005
<>. As stated in Kuroda v. Jalandoni, 83 Phil.
171 (1949), the Philippines is not a signatory to the Hague
Iavor Rangelov and Jovan Nicic, "Command Responsibility: The
Contemporary Law," <http://www.hlc-> (visited
September 9, 2009).
Adopted by 120 members of the UN on July 17, 1998 and entered
into force on July 1, 2002 <>
(visited November 26, 2009).
Pimentel v. Office of the Executive Secretary, G.R. No. 158088,
July 6, 2005, 462 SCRA 622.




Separate Opinion


I concur with the ponencia in all respects, except its treatment of the
doctrine of command responsibility.

The ponencia’s ambivalence on the applicability of the doctrine of

command responsibility overlooks its general acceptance in public
international law, which warrants its incorporation into Philippine
law via the incorporationclause of the Constitution.

Under Article II, Section 2 of the Constitution, the Philippines adopts the
generally accepted principles of international law as part of the law of the
land. Based on the clarification provided by then Commissioner Adolfo
Azcuna, now a retired member of this Court, during the deliberations of the
Constitutional Commission, the import of this provision is that
the incorporated law would have the force of a statute.1

The most authoritative enumeration of the sources of international law,

Article 38 of the Statute of the International Court of Justice (ICJ
Statute),2 does not specifically include "generally accepted principles of
international law." To be sure, it is not quite the same as the "general
principles of law" recognized under Article 38(1)(c) of the ICJ Statute.
Renowned publicist Ian Brownlie suggested, however, that "general
principles of international law" may refer to rules of customary law, to
general principles of law as in Article 38(1)(c), or to logical propositions
resulting from judicial reasoning on the basis of existing international law
and municipal analogies.3

Indeed, judicial reasoning has been the bedrock of Philippine jurisprudence

on the determination of generallyaccepted principles of international law an
d consequent application of the incorporation clause.

In Kuroda v. Jalandoni,4 the Court held that while the Philippines was not a
signatory to the Hague Convention and became a signatory to the Geneva
Convention only in 1947, a Philippine Military Commission had jurisdiction
over war crimes committed in violation of the two conventions before 1947.
The Court reasoned that the rules and regulations of the Hague and
Geneva Conventions formed part of generally accepted principles of
international law. Kuroda thus recognized that principles of customary
international law do not cease to be so, and are in fact reinforced, when
codified in multilateral treaties.

In International School Alliance of Educators v. Quisumbing,5 the Court

invalidated as discriminatory the practice of International School, Inc. of
according foreign hires higher salaries than local hires. The Court found
that, among other things, there was a general principle against
discrimination evidenced by a number of international conventions
proscribing it, which had been incorporated as part of national laws through
the Constitution.

The Court thus subsumes within the rubric of "generally accepted principles
of international law" both "international custom" and "general principles of
law," two distinct sources of international law recognized by the ICJ Statute.

Respecting the doctrine of command responsibility, a careful scrutiny of its

origin and development shows that it is a widely accepted general principle
of law if not, also, an international custom.

The doctrine of command responsibility traces its roots to the laws of war
and armed combat espoused by ancient civilizations. In a 1439 declaration
of Charles VII of Orleans, for instance, he proclaimed in his Ordinances for
the Armies:

[T]he King orders each captain or lieutenant be held responsible for the
abuses, ills, and offences committed by members of his company, and that
as soon as he receives any complaint concerning any such misdeed or
abuse, he bring the offender to justice so that the said offender be
punished in a manner commensurate with his offence, according to these
Ordinances. If he fails to do so or covers up the misdeed or delays taking
action, or if, because of his negligence or otherwise, the offender escapes
and thus evades punishment, the captain shall be deemed responsible for
the offence, as if he has committed it x x x .6 (underscoring supplied.)

The first treaty codification of the doctrine of command responsibility was in

the Hague Convention IV of 1907.7 A provision therein held belligerent
nations responsible for the acts of their armed forces,8 prefiguring the
modern precept of holding superiors accountable for the crimes of
subordinates if they fail in their duties of control, which is anchored firmly in
customary international law.9
The development of the command responsibility doctrine is largely
attributable to the cases related to World War II and subsequent events.

One prominent case is the German High Command Case10 tried by the
Nuremberg Tribunal, wherein German officers were indicted for atrocities
allegedly committed in the European war. Among the accused was General
Wilhelm Von Leeb, who was charged with implementing Hitler’s Commissar
and Barbarossa Orders, which respectively directed the murder of Russian
political officers and maltreatment of Russian civilians. Rejecting the thesis
that a superior is automatically responsible for atrocities perpetrated by his
subordinates, the tribunal acquitted Von Leeb. It acknowledged, however,
that a superior’s negligence may provide a proper basis for his
accountability even absent direct participation in the commission of the
crimes. Thus:

[C]riminality does not attach to every individual in this chain of command

from that fact alone. There must be a personal dereliction. That can occur
only where the act is directly traceable to him or where his failure to
properly supervise his subordinates constitutes criminal negligence on his
part. (underscoring supplied.)

In In re Yamashita,11 the issue was framed in this wise:

The question then is whether the law of war imposes on an army

commander a duty to take such appropriate measures as are within his
power to control the troops under his command for the prevention of the
specified actswhich are violations of the law of war and which are likely to
attend the occupation of hostile territory by an uncontrolled soldiery,
and whether he may be charged with personal responsibility for his failure
to take such measures when violations result. (emphasis, underscoring and
italics supplied.)

Resolving the issue in the affirmative, the Court found General Tomoyuki
Yamashita guilty of failing to control the members of his command who
committed war crimes, even without any direct evidence of instruction or
knowledge on his part.

The post-World War II formulation of the doctrine of command

responsibility then came in Protocol I of 1977, Additional Protocol to the
Geneva Conventions12 of 1949, Article 86 of which provides:
1. The High Contracting Parties and the Parties to the conflict shall
repress grave breaches, and take measures necessary to suppress
all other breaches, of the Conventions or of this Protocol which result
from a failure to act when under a duty to do so.

2. The fact that a breach of the Conventions or of this Protocol was

committed by a subordinate does not absolve his superiors from
penal or disciplinary responsibility, as the case may be, if they knew,
or had information that should have enabled them to conclude in the
circumstances at the time, that he was committing or was going to
commit such a breach and if they did not take all feasible measures
within their power to prevent or repress the breach.13 (emphasis,
underscoring and italics supplied.)

The doctrine of command responsibility has since been invariably applied

by ad hoc tribunals created by the United Nations for the prosecution of
international crimes, and it remains codified in the statutes of all major
international tribunals.14

From the foregoing, it is abundantly clear that there is a long-

standing adherence by the international community to the doctrine of
command responsibility, which makes it a general principle of law
recognized by civilized nations. As such, it should be incorporated into
Philippine law as a generally accepted principle of international law.

While the exact formulation of the doctrine of command responsibility

varies in different international legal instruments, the variance is more
apparent than real. The Court should take judicial notice of the core
element that permeates these formulations – a commander’s negligence in
preventing or repressing his subordinates’ commission of the crime, or in
bringing them to justice thereafter. Such judicial notice is but a necessary
consequence of the application of the incorporation clause vis-à-vis the rule
on mandatory judicial notice of international law.15

That proceedings under the Rule on the Writ of Amparo do not determine
criminal, civil or administrative liability should not abate the applicability of
the doctrine of command responsibility. Taking Secretary of National
Defense v. Manalo16 and Razon v. Tagitis17 in proper context, they do not
preclude the application of the doctrine of command responsibility to
Amparo cases.
Manalo was actually emphatic on the importance of the right to security of
person and its contemporary signification as a guarantee of protection of
one’s rights by the government. It further stated that protection includes
conducting effective investigations, organization of the government
apparatus to extend protection to victims of extralegal killings or enforced
disappearances, or threats thereof, and/or their families, and bringing
offenders to the bar of justice.18

Tagitis, on the other hand, cannot be more categorical on the application,

at least in principle, of the doctrine of command responsibility:

Given their mandates, the PNP and PNP-CIDG officials and members were
the ones who were remiss in their duties when the government completely
failed to exercise the extraordinary diligence that the Amparo Rule
requires. We hold these organizations accountable through their incumbent
Chiefs who, under this Decision, shall carry the personal responsibility of
seeing to it that extraordinary diligence, in the manner the Amparo Rule
requires, is applied in addressing the enforced disappearance of Tagitis.
(emphasis and underscoring supplied.)

Neither does Republic Act No. 985119 emasculate the applicability of the
command responsibility doctrine to Amparo cases. The short title of the law
is the "Philippine Act on Crimes Against International Humanitarian Law,
Genocide, and Other Crimes Against Humanity." Obviously, it should, as it
did, only treat of superior responsibility as a ground for criminal
responsibility for the crimes covered.20 Such limited treatment, however, is
merely in keeping with the statute’s purpose and not intended to rule out
the application of the doctrine of command responsibility to other
appropriate cases.

Indeed, one can imagine the innumerable dangers of insulating high-

ranking military and police officers from the coverage of reliefs available
under the Rule on the Writ of Amparo. The explicit adoption of the doctrine
of command responsibility in the present case will only bring Manalo and
Tagitis to their logical conclusion.

In fine, I submit that the Court should take this opportunity to state what the
law ought to be if it truly wants to make the Writ of Amparo an effective
remedy for victims of extralegal killings and enforced disappearances or
threats thereof. While there is a genuine dearth of
evidence to hold respondents Gen. Hermogenes Esperon and P/Dir. Gen.
Avelino Razon accountable under the command responsibility doctrine, the
ponencia’s hesitant application of the doctrine itself is replete with
implications abhorrent to the rationale behind the Rule on the Writ of


Associate Justice

4 Record of the Constitutional Commission 772 (1986). The
Commission unanimously voted in favor of the provision, with no
The Court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall apply:

(a) international conventions, whether general or particular,

establishing rules expressly recognized by the contesting

(b) international custom, as evidence of a general practice

accepted as law;

(c) general principles of law recognized by civilized nations;

(d) subject to the provisions of Article 59, judicial decisions and

the teachings of the most highly qualified publicists of the
various nations, as subsidiary means for the determination of
rules of law.

Statute of the International Court of Justice, Art. 38(1).

Ian Brownlie, Principles of Public International Law Sixth Edition 18
83 Phil. 171, 178 (1949).
G.R. No. 128845, June 1, 2000, 333 SCRA 13.
Text culled from Theodor Meron, Henry’s Wars and Shakespeare’s
Laws 149 N.40, Article 19 (Eng. Tr. 1993); Louis Guillaume De
Vilevault & Louis Brequigny, Ordonnances Des Rois De France De
La Troisieme Race XIII, 306 (1782).
Respecting the Laws and Customs of War on Land, October 18,
1907, U.S.T.S. 539, 36 Stat. 2277.
Id., Article 3.
Vide Prosecutor v. Mucic, International Criminal Tribunal for the
Former Yugoslavia (Appeals Chamber), judgment of February 20,
2001, para. 195. For command responsibility in international armed
conflict, videProsecutor v. Hadzihasanovic, International Criminal
Tribunal for the Former Yugoslavia (Appeals Chamber), decision on
Interlocutory Appeal Challenging Jurisdiction in Relation to Command
Responsibility of July 16, 2003, paras. 11 et seq.
United Nations War Crimes Commission, XII Law Reports of Trials
of War Criminals 1, 76 (1948).
327 US 1 (1946).
The Geneva Conventions consist of four treaties concluded in
Geneva, Switzerland that deal primarily with the treatment of non-
combatants and prisoners of war. The four Conventions are:

First Geneva Convention for the Amelioration of the Condition

of the Wounded and Sick in Armed Forces in the Field (first
adopted in 1864, last revised in 1949)

Second Geneva Convention for the Amelioration of the

Condition of Wounded, Sick and Shipwrecked Members of
Armed Forces at Sea (first adopted in 1949, successor to the
1907 Hague Convention X)

Third Geneva Convention relative to the Treatment of Prisoners

of War (first adopted in 1929, last revised in 1949)
Fourth Geneva Convention relative to the Protection of Civilian
Persons in Time of War (first adopted in 1949, based on parts
of the 1907 Hague Convention IV).
Protocol I Additional to the Geneva Conventions of August 12,
1949 and relating to the Protection of Victims of International Armed
Conflicts, June 8, 1977, 1125 U.N.T.S. 3.
Statute of the International Criminal Tribunal for the former
Yugoslavia, UN Doc. S/RES/827 (1993), Annex, Article 7(3); Statute
of the International Criminal Tribunal for Rwanda, UN Doc.
S/RES/955 (1994), Annex, Article 6(3); Statute of the Special Court
for Sierra Leone, Agreement Between the United Nations and the
Government of Sierra Leone on the Establishment of a Special Court
for Sierra Leone, January 16, 2002, Annex, Article 6(3); Statute of the
Khmer Rouge Tribunal, Law on the Establishment of Extraordinary
Chambers in the Courts of Cambodia for the Prosecution of Crimes
Committed During the Period of Democratic Kampuchea, Article 29;
Rome Statute of the International Criminal Court, circulated as
document A/CONF. 183/9 of July 17, 1998 and corrected by process-
verbaux of November 10, 1998, July 12, 1999, November 30, 1999,
May 8, 2000, January 17, 2001 and January 16, 2002, Article 28;
Statute of the Special Tribunal for Lebanon, UN Doc. S/RES/1757
(2007), Article 3(2).
Section 1, Rule 129 of the Rules of Court provides in relevant part:

Section 1. Judicial notice, when mandatory. - A court shall take

judicial notice, without the introduction of evidence, of . . . the
law of nations . . .
G.R. No. 180906, October 7, 2008, 568 SCRA 1.
G.R. No. 182498, December 3, 2009.
Supra note 16 at 57.
An Act Defining and Penalizing Crimes Against International
Humanitarian Law, Genocide and Other Crimes Against Humanity,
Organizing Jurisdiction, Designating Special Courts, and for Related
Purposes; signed into law on December 11, 2009.
Section 10. Responsibility of Superiors. - In addition to other
grounds of criminal responsibility for crimes defined and penalized
under this Act, a superior shall be criminally responsible as a principal
for such crimes committed by subordinates under his/her effective
command and control, or effective authority and control as the case
may be, as a result of his/her failure to properly exercise control over
such subordinates, where:

(a) That superior either knew or, owing to the circumstances at

the time, should have known that the subordinates were
committing or about to commit such crimes;

(b) That superior failed to take all necessary and reasonable

measures within his/her power to prevent or repress their
commission or to submit the matter to the competent authorities
for investigation and prosecution.



I CONCUR with the ponencia and its results but am compelled to write this
Separate Opinion to elaborate on some of the ponencia’s points and to
express my own approach to the case, specifically, an "alternative
approach" in resolving the case that the ponencia only partially reflects. On
this point, I still believe that my "alternative approach" would be more
effective in achieving the objectives of a Writ of Amparo.

For the record, I wish at the outset to draw attention to the recent
enactment on December 11, 2009 of Republic Act No. 9851 (RA 9851),
otherwise known as "An Act Defining and Penalizing Crimes Against
International Humanitarian Law, Genocide and Other Crimes Against
Humanity, Organizing Jurisdiction, Designating Special Courts, and for
Related Purposes." Two aspects relevant to the present case have been
touched upon by this law, namely, the definition of enforced or involuntary
disappearance, and liability under the doctrine of command responsibility.
Under Section 3(g) of the law, "enforced or involuntary disappearance" is
now defined as follows:

(g) "Enforced or involuntary disappearance of persons" means the arrest,

detention, or abduction of persons by, or with the authorization, support or
acquiescence of, a State or a political organization followed by a refusal to
acknowledge that deprivation of freedom or to give information on the fate
or whereabouts of those persons with the intention of removing from the
protection of the law for a prolonged period of time.1

With this law, the Rule on the Writ of Amparo is now a procedural law
anchored, not only on the constitutional rights to the rights to life, liberty
and security, but on a concrete statutory definition as well of what an
"enforced or involuntary disappearance" is. This new law renders academic
and brings to a close the search for a definition that we undertook in Razon
v. Tagitis2 to look for a firm anchor in applying the Rule on the Writ
of Amparo procedures.

I shall discuss RA 9851’s effect on doctrine of command responsibility

under the appropriate topic below.


By way of background, the petition for the Writ of Amparo dated October
25, 2007 alleged that petitioner Lourdes Rubrico (Lourdes) was kidnapped
and detained without any basis in law on April 3, 2007, but was
subsequently released by her captors. Soon after her release on April 10,
2007, Lourdes and her children Jean Rubrico Apruebo and Joy Rubrico
Carbonel (collectively, the petitioners) filed with the Ombudsman their
complaint (dated April 19, 2007) against
respondents Capt. Angelo Cuaresma, Ruben Alfaro, Jimmy Santana, a
certain Jonathan and Darwin Sy or Darwin Reyes. The Ombudsman
complaint was for violation of Articles 124 and 267 of the Revised Penal
Code, and of Section 4, Rep. Act No. 7438, paragraphs (a) and (b).

During Lourdes’ detention and after her release, her children (who initially
looked for her and subsequently followed up the investigation of the
reported detention with the police), and even Lourdes herself, alleged that
they were harassed by unknown persons they presumed to be military or
police personnel.

On October 25, 2007, the petitioners filed the present petition regarding: (1)
the failure of the respondents to properly investigate the alleged
kidnapping; and (2) the acts of harassment the petitioners suffered during
the search for Lourdes and after her release. The petition also alleged that
the Ombudsman violated Lourdes’ right to the speedy disposition of her
case, and placed her and her witnesses in danger because of its inaction.

Re: Respondent President Macapagal-Arroyo

The ponencia correctly ruled that the dismissal of the petition as against the
President is proper because of her immunity from suit during her term.3 The
more basic but unstated reason is that the petitioners did not even
specifically state the act or omission by which the President violated their
right as required by Section 2, Rule 2 of the Rules of Court, and therefore,
failed to prove it. Thus, I fully concur with the dismissal the ponencia

Re: The Ombudsman

I likewise agree with the ponencia’s conclusion that the petition against the
Ombudsman should be dismissed for the reason discussed below.

The petitioner simply alleged that the Ombudsman violated her right to
speedy disposition of the criminal complaint, with the passing claim that the
delay has placed her life and that of her witnesses in danger. She failed to
aver the fact of delay; the dilatory acts of the Ombudsman, if any; and
manner and kind of danger the delay caused her.

Thus, the petition did not allege anything that would place it within the
ambit of the Rule on the Writ of Amparo (the Amparo Rule) with respect to
the Ombudsman; it did not involve any violation by the Ombudsman
relating to any disappearance, extrajudicial killing or any violation or threat
of violation of the petitioners’ constitutional rights to life, liberty or security.

For this reason, the petition stated no cause of action against the
Ombudsman under the Amparo Rule, contrary to Section 2, Rule 2 of the
Rules of Court, in relation with Section 5 of the Amparo Rule. I thus join the
ponencia in dismissing the case against the Ombudsman.
Re: The Command Responsibility Ruling

On the command responsibility issue, the CA held in its decision that:

The doctrine of command responsibility holds military commanders and

other persons occupying positions of superior authority criminally
responsible for the unlawful conduct of their subordinates. For the doctrine
to apply, the following elements must be shown to exist: (i) the existence of
a superior-subordinate relationship; (ii) the superior knew or had reason to
know that the criminal act was about to be or had been committed; and (iii)
the superior failed to take the necessary and reasonable measures to
prevent the criminal act or punish the perpetrator (Joaquin Bernas, S.J.
Command Responsibility, February 7, 2007).

Since petitioners failed to establish by substantial evidence the first

element of command responsibility, i.e., that the perpetrators of the acts
complained of are subordinates of Gen. Esperon and P/Dir. Gen Razon, we
cannot hold the two officials liable under a writ of amparo.

Under these terms, the CA effectively ruled that the doctrine of command
responsibility applies in an Amparo case, but could not be applied in this
case for lack of proof that the alleged perpetrators were military or police

The ponencia rejects the CA’s approach and conclusion and holds that
command responsibility is not an appropriate consideration in an Amparo
proceeding, except for purposes specific and directly relevant to these
proceedings. I fully concur with this conclusion.

The doctrine of command responsibility is a substantive rule that

establishes criminal or administrative liability that is different from the
purpose and approach of the Amparo Rule. As we have painstakingly
explained in Secretary of Defense v. Manalo4 and Razon v. Tagitis,5 the
Amparo Rule merely provides for a procedural protective remedy against
violations or threats of violations of the constitutional rights to life, liberty
and security. It does not address criminal, civil or administrative liability as
these are matters determined from the application of substantive law.

As heretofore mentioned, a new law – RA 9851 – has recently been

passed relating to enforced disappearance and command responsibility.
Section 10 of this law explicitly makes superiors criminally liable under the
doctrine of command responsibility, as follows:6

Section 10. Responsibility of Superiors. – In addition to other grounds of

criminal responsibility for crimes defined and penalized under this Act, a
superior shall be criminally responsible as a principal for such crimes
committed by subordinates under his/her effective command and control, or
effective authority and control as the case may be, as a result of his/her
failure to properly exercise control over such subordinates, where:

(a) That superior either knew or, owing to the circumstances at the
time, should have known that the subordinates were committing or
about to commit such crimes;

(b) That superior, failed to take all necessary and reasonable

measures within his/her power to prevent or repress their
commissio0n or to submit the matter to the competent authorities for
investigation and prosecution.

Thus, liability under the doctrine of command responsibility is no longer

simply administrative (based on neglect of duty),7 but is now criminal. This
new development all the more stresses that the doctrine of command
responsibility has limited application to the Rule on the Writ
of Amparo whose concern is the protection of constitutional rights through
procedural remedies.

The factual issue an Amparo case directly confronts is whether there has
been a disappearance or an extrajudicial killing or threats to the
constitutional rights to life, liberty and security. If at all possible, a
preliminary determination can be made on who could have perpetrated the
acts complained of, but only for the purpose of pointing the way to the
remedies that should be undertaken. On the basis of a positive finding, the
case proceeds to its main objective of defining and directing the
appropriate procedural remedies to address the threat, disappearance or
killing.8 In meeting these issues, the Amparo Rule specifies the standard of
diligence that responsible public officials carry in the performance of their
duties. Expressly,9 one duty the Amparo Rule commands is the
investigation of a reported crime that, by law,10 the police is generally duty
bound to address.
To the extent of (1) answering the question of whether an enforced
disappearance, an extrajudicial killing or threats thereof have taken place
and who could have been the perpetrators of these deeds; (2) determining
who has the immediate duty to address the threat, disappearance,
extrajudicial killing or violation of constitutional right; and in (2) determining
the remedial measures that need to be undertaken – the doctrine of
command responsibility may find some relevance to the present petition.

This linkage, however, does not go all the way to a definitive determination
of criminal or administrative liability, or non-liability, for the act of a
subordinate or for neglect of duty. This question is far from what the CA or
this Court can definitively answer in an Amparo petition and is certainly an
improper one to answer in an Amparo proceeding. It has never been the
intention of the Amparo Rule to determine liability, whether criminal or
administrative; the Court, under the Amparo Rule, can only direct that
procedural remedies be undertaken for the protection of constitutional
rights to life, liberty and security.

In Tagitis, we pointedly stated that while the Court can preliminarily

determine responsibility in terms of authorship (not liability), this is only "as
a measure of the remedies this Court shall craft, among them, the directive
to file the appropriate criminal and civil cases against the responsible
parties in the proper courts." In doing this, we gave "responsibility" a
peculiar meaning in an Amparo proceeding. (We did the same with the
term "accountability.")11 It is only in this same sense that the CA can hold
respondents Gen. Esperon and P/Dir. Gen. Razon not liable under the
doctrine of command responsibility.

Re: Respondents P/Dir. Gen. Razon and Gen. Esperon

Subject to the above observations and for the reasons discussed below, I
concur in dismissing the petition against the respondents P/Dir. Gen.
Razon and Gen. Esperon who were impleaded in their capacities as
Philippine National Police (PNP) Chief and Armed Forces of the Philippines
(AFP) Chief of Staff, respectively. As a matter of judicial notice, they are no
longer the incumbents of the abovementioned positions and cannot
therefore act to address the concerns of a Writ of Amparo. In their places
should be the incumbent PNP Chief and AFP Chief of Staff to whom the
concerns of and the responsibilities under the petition and the Amparo Rule
should be addressed. Unless otherwise directed by the Court, these
incumbent officials shall assume direct responsibility for what their
respective offices and their subordinate officials should undertake
in Amparo petitions. This is in line with what we did in Tagitis where, as
appropriate remedy, we applied the broadest brush by holding the highest
PNP officials tasked by law to investigate, to be accountable for the
conduct of further investigation based on our finding that no extraordinary
diligence had been applied to the investigation of the case.

Consistent with this position, the petition should likewise be dismissed as

against respondents Edgar B. Roquero (Roquero) and Arsenio C. Gomez
(Gomez), except to the extent that Gomez may be charged with
harassment and oppression before the Ombudsman12 as these are
substantive liability matters that are not laid to rest under an Amparo

Re: Consideration of the Evidence and the Remedy

I acknowledge that the police at the municipal and provincial levels

conducted investigations that unfortunately did not produce concrete
results because of, among others, the lack of cooperation from the
petitioners at some point during the investigation. No amount of
extraordinary diligence indeed can produce results if the very persons
seeking the investigation would not cooperate.

I do not read this intervening development, however, to be indicative of lack

of interest in the case, given the efforts on record exerted by the petitioners
to follow up the case at every level of police investigation. Moreover, the
petitioners still pursued their petition and relied on this Court, in the hope
that we can remedy what they perceive to be inadequate police
investigative response.

In my view, the perceived lack of cooperation resulted more from frustration

with police processes rather than from the outright refusal to cooperate. As
we discussed in Tagitis, this is precisely the type of situation that a Writ
of Amparo addresses – a situation where the petitioners swim against the
current in a river strewn with investigative and evidentiary difficulties.

From the records, I note that very significant gaps exist in the
handling of the investigation – among them, the failure to identify and
locate the respondents Major Darwin Reyes/Sy, Jimmy Santana, Ruben
Alfaro, Captain Angelo Cuaresma and a certain Jonathan – to the point that
the petition was not even served on these respondents. This gap occurred
despite evidence that the respondents are military or police personnel and
that the address of Darwin Reyes/Sy had apparently been located and he
had been identified to be connected with the military. A major problem, as
the petition pointed out, is that the AFP itself certified that these
respondents are not in the roster of Philippine Air Force personnel; no
search and certification was ever made on whether they are AFP
personnel or in other branches of the service. No significant follow
through was also made in locating and properly placing Darwin Reyes/Sy
within the jurisdiction of the court despite the evidentiary leads provided.
These constitute major gaps in the investigation that became the stumbling
blocks to its progress, both with the CA and the Ombudsman. Both bodies
failed to make any headway because only the investigating respondents
who are not alleged participants in the kidnapping showed up while the
alleged perpetrators did not. This Court will never know unless further
investigation is conducted whether this happened by design or by accident.

Based on this view, I agree with the ponencia that further

investigation and monitoring should be undertaken. While past
investigations may have been conducted, no extraordinary diligence had
been applied to critical aspects of the case that are outside the petitioners’
capability to act upon and which therefore have not been affected by the
petitioners’ lack of cooperation, even assuming this to be true. Because of
this investigative shortcoming, we do not have sufficient factual findings
that would give us the chance to fashion commensurate remedies.
Otherwise stated, we cannot rule on the case until a more meaningful
investigation using extraordinary diligence is undertaken.

The ponencia holds that the needed additional actions should be

undertaken by the CA. I concur with this ruling as it is legally correct; the
CA started the fact-finding on the case and has adequate powers and
capability to pursue it. I wish to reiterate in this Separate Opinion, however,
that an alternative way exists that is more direct and more efficient in
achieving the goals of the Rule on the Writ of Amparo – i.e. the full and
complete investigation with the observance of extraordinary diligence, and
the recommendation for the prosecution of the parties who appear to be
responsible for the violation of the constitutional rights to life, liberty and
security. This alternative is based on the relevant provisions of
the Amparo Rule, particularly Sections 20 to 23 which provide:
SECTION 20. Archiving and Revival of Cases. — The court shall not
dismiss the petition, but shall archive it, if upon its determination it cannot
proceed for a valid cause such as the failure of petitioner or witnesses to
appear due to threats on their lives.

A periodic review of the archived cases shall be made by the Amparo court
that shall, motu proprio or upon motion by any party, order their revival
when ready for further proceedings. The petition shall be dismissed with
prejudice upon failure to prosecute the case after the lapse of two (2) years
from notice to the petitioner of the order archiving the case.

The clerks of court shall submit to the Office of the Court Administrator a
consolidated list of archived cases under this Rule not later than the first
week of January of every year.

SECTION 21. Institution of Separate Actions. — This Rule shall not

preclude the filing of separate criminal, civil or administrative actions.

SECTION 22. Effect of Filing of a Criminal Action – When a criminal action

has been commenced, no separate petition shall be filed. The reliefs under
the writ shall be available by motion in the criminal case.

The procedure under this Rule shall govern the disposition of the reliefs
available under the writ of amparo.

SECTION 23. Consolidation. — When a criminal action is filed subsequent

to the filing of a petition for the writ, the latter shall be consolidated with the
criminal action.

When a criminal action and a separate civil action are filed subsequent to a
petition for a writ of Amparo, the latter shall be consolidated with the
criminal action.

After consolidation, the procedure under this Rule shall continue to apply to
the disposition of the reliefs in the petition.

SECTION 26. Applicability to Pending Cases. — This Rule shall govern

cases involving extralegal killings and enforced disappearances or threats
thereof pending in the trial and appellate courts.
Section 22 of the Amparo Rule would be the closest provision to apply to
the present case since a criminal action has been commenced before the
Ombudsman (on April 19, 2007) before the present petition was filed on
October 25, 2007. Under Section 22, no petition for the Writ of Amparo can
technically be filed because of the previous commencement of criminal
action before the Ombudsman. In the regular course, the present petition
should have been dismissed outright at the first instance.

Yet, as the case developed, the Court issued the Writ of Amparo and the
CA denied the petition on other grounds. As things now stand, it appears
late in the day to dismiss the petition on the basis of Section 22. We should
consider, too, that the present petition came under a unique non-repeatable
circumstance – the Ombudsman complaint was filed before the Amparo
Rule took effect; thus, the petitioners did not really have a choice of
remedies when they filed the criminal complaint before the Ombudsman.
There is likewise the consideration that the Ombudsman complaint was
only against the perceived perpetrators of the kidnapping, whereas the
present petition impleaded even those who had the duty to investigate or
could effectively direct investigation of the case. The kidnapping and the
threats that resulted, too, are inextricably linked and should not separately
and independently be considered under prevailing procedural rules.13

Under the circumstances, I believe that the best approach is to simply

avail of the possibilities that the combined application of the above-
quoted provisions offer, appropriately modified to fit the current
situation. Thus, this Court can simply consolidate the investigative and
fact-finding aspects of the present petition with the investigation of the
criminal complaint before the Ombudsman, directing in the process that the
threats to the right to security aired in the present petition be incorporated
in the Ombudsman complaint. Necessarily, all the records and evidence so
far adduced before the CA should likewise be turned over and be made
available to the Ombudsman in its investigation, in accordance with the
dispositions made in this Decision. For purposes of its delegated
investigative and fact-finding authority, the Ombudsman should be granted
the complete investigative power available under the Amparo Rule.

The petitioners should be allowed, as they see fit, to amend their

Ombudsman complaint to give full effect to this consolidation.
In the above manner, the Court continues to exercise jurisdiction over the
Amparo petition and any interim relief issue that may arise, taking into
account the Ombudsman’s investigative and fact-finding recommendations.

The Ombudsman, for its part, shall rule on the complaint before it in
accordance with its authority under Republic Act 6770 and its implementing
rules and regulations, and report to the Court its investigative and fact-
finding recommendations on the Amparo petition within one year from the
promulgation of this Decision.

The incumbent Chiefs of the AFP and the PNP and their successors shall
remain parties to the Ombudsman case and to the present petition in light
of and under the terms of the consolidation, and can be directed to act, as
the ponencia does direct them to act.

Now that the case has been remanded for further investigation and
monitoring to the Court of Appeals, the investigation using the standards of
extraordinary diligence now rests with that court to enforce, using all the
powers and authority that this Court can grant under the Rule on the Writ
of Amparo. The Ombudsman, for its part, has been duly enlightened by the
ponencia and by this Separate Opinion on the directions it should take to
effectively discharge its tasks in handling the complaint before it. The
petitioners, too, have their share of the burden in pushing their case to a
meaningful conclusion and cannot just wait for the other dramatis
personae to act. With the Court’s Decision, action has again shifted to the
lower levels and the Court now simply waits to see if the appellate court,
the Ombudsman and the parties, acting on their own and collectively, can
be equal to the tasks before them.

Associate Justice

Under Section 6 of RA 9851, enforced or involuntary disappearance
is penalized under the concept of "other crimes against humanity"
when committed as part of a widespread or systematic attack
directed against any civilian population, with knowledge of the attack.
G.R. No. 182498, Dec. 3, 2009.
Under Section 9 of RA 9851, the Philippine constitutional standard
of presidential immunity from suit is also made an exception to the
higher international criminal law standard of non-immunity of heads of
state for the most serious crimes of concern to the international
community as a whole – namely, war crimes, genocide, and crimes
against humanity. Thus, Section 9 states:

Section 9. Irrelevance of Official Capacity. - This Act shall

apply equally to all persons without any distinction based on
official capacity. In particular, official capacity as a head of state
or government, a member of a government or parliament, an
elected representative or a government official shall in no case
exempt a person from criminal responsibility under this Act, nor
shall it, in and of itself, constitute a ground for reduction of
sentence. However:

(a) Immunities or special procedural rules that may be attached

to the official capacity of a person under Philippine law other
than the established constitutional immunity from suit of the
Philippine President during his/her tenure, shall not bar the
court from exercising jurisdiction over such a person; and

(b) Immunities that may be attached to the official capacity of a

person under international law may limit the application of this
Act, nut only within the bounds established under international
law. [emphasis supplied]
G.R. No. 180906, Oct. 7, 2008, 568 SCRA 1, 57-58.
Supra note 1.
Similarly, Section 13 of Republic Act No. 9745, otherwise known as
the "Anti-Torture Act of 2009" makes "[t]he immediate commanding
officer of the unit concerned of the AFP or the immediate senior
public official of the PNP and other law enforcement agencies
criminally liable as a principal to the crime of torture or other cruel or
inhuman and degrading treatment or punishment "[i]f he/she has
knowledge of or, owing to the circumstances at the time, should have
known that acts of torture or other cruel, inhuman and degrading
treatment or punishment shall be committed, is being committed, or
has been committed by his/her subordinates or by others within
his/her area of responsibility and, despite such knowledge, did not
take preventive or corrective action either before, during or
immediately after its commission, when he/she has the authority to
prevent or investigate allegations of torture or other cruel, inhuman
and degrading treatment or punishment but failed to prevent or
investigate allegations of such act, whether deliberately or due to
negligence shall also be liable as principals."
As provided under Executive Order No. 226 for the Philippine
National Police and Circular No. 28, Series of 1956 of the Armed
Forces of the Philippines.
Rule on the Writ of Amparo, Sections 5, 9 and 17.
Republic Act No. 6975, Section 24.
In Tagitis, we defined the concept of responsibility and
accountability for Writ of Amparo cases as follows: "Responsibility
refers to the extent the actors have been established by substantial
evidence to have participated in whatever way, by action or omission,
in an enforced disappearance, as a measure of remedies this Court
shall craft, among them, the directive to file the appropriate criminal
and civil cases against the responsible parties in the proper courts.
Accountability refers to the measure of remedies that should be
addressed to those who exhibited involvement in the enforced
disappearance without bringing the level of their complicity to the
level of responsibility defined above; or who are imputed with
knowledge relating to the enforced disappearance and who carry the
burden of disclosure; or those who carry, but have failed to discharge,
the burden of extraordinary diligence in the investigation of the
enforced disappearance."
See Prudencio M. Reyes, Jr. v. Simplicio C. Belisario, G.R. No.
154652, August 15, 2009.
See Philippine National Bank v. Gotesco Tyan Ming Development,
Inc., G.R. No. 183211, June 5, 2009, where the Court held that "[t]he
rule allowing consolidation is designed to avoid multiplicity of suits, to
guard against oppression or abuse, to prevent delays, to clear
congested dockets, and to simplify the work of the [courts]; in short,
the attainment of justice with the least expense and vexation to the
parties-litigants." See also Teston v. Development Bank of the
Philippines, G.R. No. 144374, November 11, 2005, 474 SCRA 597,